The U.S. Federal Circuit, a bench of ten judges, has just shot software patents ragged. Being a legal ruling, just how ragged is of course shrouded in lawyer's fees. This is bound to reverberate across the world, even as far as our own little Blighty.

There is also the anti-patent view held, for example, by Michael Faraday who published everything he discovered as soon as he had discovered it in order to prevent anyone from patenting it.

Though not his intention, it has been argued that, because he published in English, this gave Victorian industry a headstart. It had been argued earlier than Boulton and Watts' steam engine patents had held up innovation in the 18th century.

In the 1960s the designers of a BBC studio speaker published the design to prevent anyone patenting it. It has been suggested that this prompted the boom in British speaker production.

.Software patents do not make any sense. A patent was designed to protect the creator of a tangible object, to enable others to make similar items if they paid a 'reasonable' fee to the innovator.

Software patents are not relatd to any tangible object. They are, in effect, giving people the right to claim ownership of an idea. Worse, because the US patent office does not have the resources or expertise properly to investigate these applicatons they are licensing a)nebulous, wide-ranging claims and b)claims that should be ineliggible due to prior art.

Leaving aside the fact that software should nott be patentable (and coyright covers the expression of an idea - not the idea itself) the US system, instead of requiring the applicant to show that the idea was originallyy theirs, license spurious claims and then leave it to those affected to chllenge and demonstrate prior art. The costs have now moved from those intent on making money from an idea to those who wish to use that idea, knowing it did not originte with the patent holder.[/i]

normanHLinux wrote: A patent was designed to protect the creator of a tangible object, to enable others to make similar items if they paid a 'reasonable' fee to the innovator.

Software patents are not relatd to any tangible object. They are, in effect, giving people the right to claim ownership of an idea.

On which basis, surely all those patent troll companies should have their cases thrown out as they do not keep the patent so that they can produce anything?

Actually, I think the answer to this is, yes. If a company does not bring a product to market within five years of being granted a patent, or license another company to do so, the patent should be declared null and void.

It may introduce abuse, if executed that way. A large company can dissuade sponsors to invest in a patent held by a new/small company, to see it thrown out and then use the exact patent to manufacture their own stuff. That's not what patents were intended to do, not by a long shot. Even then, patents may be so far ahead of their time that technology needs some time to catch up.

A patent is not meant to protect ideas, but true inventions.
If a patent is applied for on something that cannot exist given current technology, it is an idea, not an invention.
If someone needs more than 5 years to develop it, they should be able to prove that it will be available within a realistic timeframe.
Many of the software patents are extremely vague, and design patents are even worse.
A patent on a rectangle with rounded corners for example.
The best defence is prior art.
Barnes and noble took on microsoft's android patents with a book of prior art examples. MS settled, because most if not all of their Android patent portfolio would have dissolved in court.

The sig between the asterisks is so cool that only REALLY COOL people can even see it!

The question as to whether software can in principle be patented remains open. While agencies in various countries happily grant endless patents of dubious originality, it is a general principle that you can patent physical inventions but not ideas. (You can copyright the expression of an idea, but that is not the same as a patent on the idea itself).

There is a popular argument that software is logic, logic is maths, maths is ideas, therefore software cannot be patented and any such patents granted are actually invalid. This is very, very slowly being tested through the American legal system, while Europe (last I looked) remains in unhappy internal conflict.

Being schooled (at a very elementary level) as a philosopher and logician, I don't buy the "software is maths" argument.

Trivially, Maths is actually just one branch of logic, along with things like reasoned argument or plugging a load of hydraulic actuators into each other. It is mainly mathematicians who like to think that their discipline underlies all forms of reason, and there are more of them than there are of us, so they make a louder noise on the interweb. Doesn't mean they are right, though. Either way, software is certainly logic and logic may be abstracted as pure ideas.

However, I think there is a more important flaw in the "software is maths" argument. Suppose I invent a novel mechanical linkage that performs some arbitrary function such as drawing a straight line. I can certainly patent such a novel linkage, even if its function is performed equally well by some other well known linkage. If I invent a novel digital device dedicated to drawing straight lines, I can patent that too.

And that is the key point. I cannot patent the idea of a straight line, but I can patent my linkage - my mechanical algorithm - for drawing it. (I can copyright it too, but someone need only change the design details to evade that - rounded corners, anybody?)

Can anybody explain to me how software embodying my algorithm is supposed to differ from a mechanical or electronic device embodying that same algorithm?

If not, then it seems that software is indeed patentable. The fact that logic can be abstracted as a pure idea does not necessarily mean that it has to be.

Software does not exist in isolation, it must always be stored. So one might argue that a storage device, containing a program which embodies my algorithm, is patentable while the software itself is not. All one needs to do to avoid the patent is to use a different kind of storage device. But isn't that like saying that my linkage is patentable while the arrangement of connections between the links is not? Change the materials of which the mechanism is constructed, and you do not escape my patent, so why think you can change the storage medium? You are not even avoiding my software copyright, a much weaker thing.

Mathematicians might also like to contemplate the distinction between pure and applied mathematics. One might suggest that pure math cannot be patented while applied math at least sometimes can.

Just to clarify: I certainly believe that software patents are in general a Bad Thing. It's just that I don't buy the "software is maths" argument. They are bad for other reasons.

"Klinger, do you know how many zoots were killed to make that one suit?" — BJ Hunnicutt, 4077 M*A*S*H

Dutch_Master wrote:It may introduce abuse, if executed that way. A large company can dissuade sponsors to invest in a patent held by a new/small company, to see it thrown out and then use the exact patent to manufacture their own stuff. That's not what patents were intended to do, not by a long shot. Even then, patents may be so far ahead of their time that technology needs some time to catch up.

I'm pretty sure that large companies already try to abuse small inventors, so there's nothing new in that. They will gain very little by trying to wait out the five years, as the patent will be null and void, as such they would have no exclusive rights to the invention. It would serve them much better to make an arrangement with the inventor and bring the product to market with an exclusive licensing agreement in place.
Other than that, WC makes most of the other points that I had thought of.
I have to say that I'm very much against the idea that a patent can be granted for something that doesn't exist, at least as a prototype. There are plenty of ideas out there for inventions that can't yet be made, it's usually called Science Fiction which is correctly covered by copyright.

Can anybody explain to me how software embodying my algorithm is supposed to differ from a mechanical or electronic device embodying that same algorithm?

Yes, this is an area for copyright not patent.

With a patent you are registering/protecting a tangible object tht does something. Copyright protects the specific expression of an idea.

For example, Edgar Allen Poe's 'Murders in the Rue Morgue' is frequently cited as the first detective novel (Wilkie Collins' fans claim 'The Woman in White').

If patents can be applied to an idea in software, why not in a novel? In which case nobody else would be allowed to write a detective novel without paying fees to Poe's estate.

This is what the Americans have done to software with the ridiculous application off patents to something that was sufficiently protected by copyright - especially as the US led the way with their Mickey Mouse extension to the life of copyright while Cliff Richard et al are trying to extend it ludicrously here as well.

Well the software patent is never going to be a past. Every other other day you hear some company used ideas of some other company. This is what is going to happen in coming years.

Yes, unfortunately, and the US Legislature is, at last, starting to address some of the problems. Meanwhile this willy-nilly issuing of patents is destroying our business. Companies such as Microsoft et.al have a huge portfolio of dubious patents which they use to barter with each other and stifle true innovation in case it may threaten their hegemony.

My point about novels has not been addressed, so let's move it nearer home. Many of us long-term software developers have worked on aspects of payroll systems in the past. Had software patents been prevalent then, as they are now, this could not have happened. Somebody would have patented the idea of a payroll run on a computer and that would have been that.

Doesn't matter if somebody beat them to it. That person did not patent it. Doesn't matter that the company with the patent never got round to actually writing their payroll or, if they did, it was crap. None of us could write payroll software without paying a licence fee.

There are no circumstances in which a software patent can be anything but bad for the industry - although useful for large companies who are otherwise losing market share.

A grant of patent was intended to protect and encourage innovation.

A grant of a software patent stifles innovation, which is all that it is used for.

For most of my life in this business copyright was the accepted way of protecting the intellectual effort involved in software. It is still, in my opinion, the only appropriate means.